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Appeals Court Ruling
IN THE COURT OF APPEAL SOUTH WEST PROVINCE HOLDEN AT BUEA
BEFORE THEIR LORDSHIPS:
CHIEF JUSTICE H.M. NAJEME
JUSTICE J.F. FONKWE
JUSTICE A. K. NANA
THIS MONDAY THE 27TH DAY OF MAY 2002
CASWP/20M/2002
BETWEEN:
BRILLIAN AYUK WILSON ……………………………APPLICANT
AND
1. GLENN WILLIAM WILSON
2. JUSTICE TEDDY MESIME MOKWE ………………RESPONDENTS
Parties present.
Appearances: Mr. Eno Charles for the Applicant Mr. Charley – Sone for the
1stRespondent Mr. Loh Patrick for the 2nd Respondent.
“ THE REPUBLIC OF CAMMEROON”
“IN THE NAME OF THE PEOPLE OF CAMEROON” THE UNANIMOUS RULING PER LORD JUSTICE
FONKWE
This is an application by way of motion on notice praying this Honourable Court
for the following orders:
1. Recusing the 2nd Respondent herein from hearing and determing suit No. HCF/23/MC/2000
– 2001 now pending before the Fako High Court.
2. And for any other order or order the Court may deem fit and proper to make in
the circumstance of the case.
In support of the Motion prayers is a 39-paragraph affidavit and an eighteen
paragraph further affidavit.
The Honorable Procureur General made this intervention through a fourteen
paragraph Counter affidavit and oral submissions.
Opposing the Motion prayer, 1st Respondent has filed a 17-paragraph affidavit
with annextures A, B, B1, C, D and D1.
2nd Respondent on his part opposed the Motion in a 48-paragraph Counter
affidavit.
All the parties did move the Court and made oral submissions.
Barrister Eno Charles of Counsel for applicant submitted that the application
was brought pursuant to law No. 75.17 of 8/12/75 , section 98 to 100 of which
relate to the procedure to recuse a Magistrate.
According to him, the question the Appeal Court had to answer was whether
Applicant had good grounds to believe that she cannot have a fair trial before
the High Court of Fako presided over by the 2nd Respondent.
He further submitted that the issue was not whether bribery was established but
how Applicant feels seeing 1st Respondent in the company of the 2nd Respondent
after 1st Respondent had boasted to her that he had the judge at his back and
call
Refering to the Counter affidavit, Counsel argued that following section 98 (3)
of the relevant law, Respondents should have filed the counter affidavits within
8 days. Since they did not respect this time lapse, he contended that their
responses should be discountenanced with the Court.
Counsel finally submitted that the law does not make provision for the office of
the Procureur General to come into a matter like the one in dispute. However,
the Procureur General chambers should have filed only written submissions if
they were to intervene and not a counter affidavit because they were not a party
to the case. Besides, counsel said, the very Procureur General had detained
Applicant for 9 days in a matrimonial issue. Madame the Advocate General Njoya
Irene née Nko for the Procureur General Chambers submitted that bearing in mind
the provisions of Ordiance No. B72/4 of 26/8/72 on Judicial Organisation, and
following the case CASWP/60/97, Cameroon Lonestar General chambers had to file a
counter affidavit and written submissions. She firmly argued on any matter in
Court, be it civil or criminal.
She argued that for the jurisdiction of the Judge to be ousted it had to be
shown that his integrity was compromised. Refering to the affidavit she said
paragraph 30 did not state any time and place while the rest of the affidavit
was vague. According to her, in all paragraphs of the affidavit, the Judge was
not found drinking with 1st Respondent.
She also argued that the further affidavit was an after thought coming after her
Counter Affidavit and should be discountenanced.
She urged the Court to dismiss the application and order Applicant to pay the
fine spelt out in the law.
Barrister Charley – Sone of Counsel for the 1st Respondent, argued that to
impeach the honour, dignity and confidence of a judge, the evidence must be
weighty, cogent and compelling. Counsel found falsehood in paragraph 21 of
Applicant’s affidavit contradicted paragraph 25 of the further affidavit.
Barrister Loh Patrick for the 2nd Respondent urged the Court to hold that their
Counter affidavit was regular as per service since they were served the further
affidavit in open Court on the hearing date.
Counsel submitted that Applicant could not prove bribery beyond reasonable
doubt. He argued that paragraph 18 of the affidavit was hearsay evidence. He
prayed the Court to strike out paragraphs 16, 17 18, 28, 29 and 39 of the
affidavit. Finally Barrister Loh argued that law No.75/17 is applicable only to
the Supreme Court and not to the Court of Appeal. He concluded the application
be dismissed.
ON VARIOUS OBJECTIONS
We have carefully examined paragraphs 28, 29 and 39 of the affidavit. They are
neither legal arguments nor conclusions and so do not offend sections 85 and 86
of the evidence ordinance.
Barrister Eno argued that Respondents did not file their Counter Affidavit
within 8 days and so they should be discountenanced. But there is his further
affidavit, which defeats this argument because any delay should run only from
the date of the further affidavit, which interrupted the time lapse.
Barrister Loh indicated in parargrapgh 39 of his counter affidavit that he could
raise a preliminary objection as to the competence of the Court to hear this
Motion. This was however not rasied and is of no moment.
The contention that the Procureur general should not have submitted in this
matter is not tenable because of the provisions of section 23 (3) of Ordinance
No.72/4 of 26/8/72 as modified by law No.89/019 of 29/12/89 which empowers that
office to intervene and /or submit in all civil matters even as principle
parties to state the position of the law.
ON THE APPLICABLE LAWS
Barrister Loh Patrick of counsel for the 2nd Respondent submitted that the
application was based on law No. 75/17 of 8/12/75 cited by Applicant but which
is applicable only to the Supreme Court. Without suggesting the right law he
urged the Court to dismiss the application because predicated on a wrong law
cited by Applicant.
We would like to state that parties are not bound to quote any laws when they
come to Court. They disclosed facts and it is the duty of the judge to say the
law.
The relevant laws on the recusal of Magistrate and Judges can be found in
section 37 and 40 of the southern Cameroon Magistrates’ Court Law 19955 as read
together with section 978 to 101 of law No.75/17 of 8/12/75 fixing the procedure
before the administrative bench of the Supreme Court.
The relevant provisions of the Southern Cameroon Laws fall under the
distribution of Court business.
Section 37 of the Southern Cameroon Magistrates’ Court law 1995 stipulated:
“A Magistrate may, of his own Motion, Or on the application of any person
concerned, Report to a Judge the pendancy of any cause or matter, civil or
criminal, which in the opinion of such Magistrate ought for any reason to be
transferred from his Court to any other Magistrate Court or to the High , such
Judge Shall direct in which mode and where the cause Or matter be heard and
determined”
Section 57 of the Southern Cameroon High Court Law
partially is as follows:
1. “The Chief Justice may at any time or stage of the proceedings before
judgement and either or without application from any of the parties thereto ,
transfer any cause or matter before a judge to any other judge.
2. The power of transfer under this section shall be exercised by means of an
order under the hand of the Chief Justice and the seal of the High Court”.
Section 40 of the Southern Cameroon Magistrates’ Court laws 19955 also states:
1. “To the extent that the legislature of the Southern Cameroon is enabled to
confer such power , the Chief Justice or a Judge may at any time and at any
state thereof before judgment transfer any cause or matter before a Magistrate
Court to any other Magistrate”.
The above-cited laws do not specify the reasons of the transfer, nor the
procedure to be followed by litigants before the Court or Chief Justice.
Oppressive conduct in Court and inappropriate conduct of Court on the part of
the Magistrate or Judge are some of the reasons that readily come to mind. Past
and current friendly ties with litigants matter just like blood relationship
with a party. Utterances before and during the trial may also count. The list is
not exhaustive of course rumor and vain suspision would not be allowed to
prevail over the judicial process.
It is apparent from all these laws that the chief Justice or the hierarchy of
judiciary is watchdog of judicial impartiality. In our Cameroonian context of
today that Chief Justice who used to head the High Court had both Appellate and
original jurisdiction. While of appeal , his original jurisdiction is shared
between the court of First Instance and the High Court both of which are longer
directly under his supervision. The powers conferred on the Chief Justice by the
1955 laws still remain as he is assisted administratively by the Presidents of
the lower Courts. Their administrative functions must however be distinguished
from jurisdictional functions for which the judge in the present case is being
recused. It is trite law that once a case has being assigned , the magistrate or
judge has to follow only the law and his conscience. He can no longer receive
orders from the administrative hierarchy of the judiciary. But he can be recused
and the matter transferred.
We believe the recusal procedure is special with its inert problems. In order
for the judicial hierarchy to order the transfer of a case, the facts leading to
legitimate suspicion must be examined and all sides involved in this accusation
heard.
If no rules are given by the Southern Cameroon laws of 1955 as to how the
transfer of a case may be obtained, granted or refused, we readily borrow from
section 98 to 101 of law No. 75/17 of 8 December 1975 fixing the procedure
before the administrative bench of the Supreme Court of Cameroon. We hold that
the application mentioned in the 1955 laws may be deposited in the trial Court
registry or formerly through a motion on notice. We do not see it being an oral
application as Barrister Eno attempted in the lower Court. The recused
Magistrate or Judge must, within eight days of notification, give his written
observation either accepting the recusal or refusing it. The competent Court,
which in our case is the Court of Appeal in its full bench, sits in Camera and
deliberates upon the facts after listening to the Procureur General and the
parties. In this way the recusal of magistrates of the Court of First Instance
and Judges of the High Court and those of Appeal Court, except its President,
are heard by the full bench of Appeal.
ON THE RECUSAL PROPER
A samary of the facts leading to this application is that Applicant and 1st
Respondent are husband and wife. They have a divorce Suit No. HCF/23/MC/2000/2001
pending since 14 August 2001 before 2nd Respondent who is president of the Fako
High. At one of the return dates tempers flared in Court as counsel for
Applicant said his client had not been served with a said motion to the
substantive matter. The judge overruled and heard the motion, holding that pupil
Barrister Mbianyor of Eno Law Chambers had been served on behalf of Applicant ,
before two Court Clerks and in open Court but he had refused to sign proof of
service.
Form paragraph 20 of 2nd Respondent’s Counter Affidavit was averred that
Barrister Eno Charles of Counsel for the Respondent in the divorce Suit before
the lower Court , then informed the trial Judge that he was taking sides and he
Eno was recusing the Judge from hearing the substantive matter. This counsel
finally walked out of Court. On 4th March 2002 counsel filed an application by
was of motion on notice in the Appeal Court recusing 2nd Respondent herein from
hearing and determining Suit No. HCF/23/MC/2000/2001 still pending in the Fako
High Court.
It should be noted in passing that two interlocutory rulings have made in this
pending divorce proceedings by the trial Judge. They are from Motion No. HCF/23/MC/2000/2001/1M
that provocked the recusal procedure and Motion No. HCF/23/MC/2000/2001/2M. In
both rulings a number of Preliminary measures were taken by the lower Court
affecting the property rights of the spouses. The Rulings are contested on
interlocutory appeals by Counsel for Applicant .
The expression recusing a judge may not be good sounding to English purists. To
us it simply means refusing to submit to the authority of a given Court or judge
by raising an objection as to that Court or Judge conducting the trial for
reasons of being bias or partial . it may also mean transferring the case for
other legitimate reasons.
Before examining the veracity of the assertions made by Applicant in the instant
case we would like to say we know of no law that permits a litigant to choose
his Judge like a patient would voluntarily seek the services of a medical doctor
or refuse treatment from a particular hospital. We strongly deplore and condemn
the unorthodox means used by Barrister Eno Charles in the lower trial Court to
frustrate the hearing of this case. What respect was this Barrister showing our
Courts by contemptuously walking out of Court. It is scandalous for his pupil
lawyer to receive motion papers on behalf of their client but refuse signing
proof of that service.
In fact our procedural laws are strict on all dilatory practices and contempt in
the face of the Court. As for the jurisdiction of the Courts, territorial and
material competence are determined by the adjectival laws without taking into
consideration the wishes and whims of litigants and counsels. Distinction must
however be made between ousting the juris – diction of a Court because it lacks
such material and local competence and recusing a Court or a Judge though they
have both material and territorial competence but seem bias and may not give a
fair trial .
In this last case it is the honor and dignity of the Judge that are put into
question. This is such a serious matter that must be taken with care because for
a Judge to discharge his functions efficiently his honor and dignity must be
jealously protected. Recusal must therefore be founded on weighty, content and
compelling evidence. Seen otherwise this procedure would open the floodgates for
obnoxious litigants with gullible and unruly lawyers ready to smear and run down
honest and just judges.
However our Courts must at all times maintain the principles of impartiality of
adjudication, those of fairness and of integrity of adjudication . while the
principle of impartially ensure that everyone is treated equally under the law,
that of intergrity guarantees that decisions which protect the right of the
individual have the moral authority which commands respect. It is not enough for
these principles to be recognised. They must be practised. They should lie in
the breast of the judge.
This implies that if for some apparent reason a litigant suspects he may not
have a fair trial before a particular Magistrate or Judge, then he could request
that his case be transferred .
The arguments and reasons advanced in the present case by Applicant are found in
paragraphs 21, 25, 29, 30, 31, 33 and 34 of her affidavit and paragraphs 17 and
18 of the further affidavit. In essence they are that the husband boasted to the
wife that he would win the divorce suit because he had the trial judge at his
beck call: that he equally told the wife he would bribe his way through the
case; that in November 2001 the wife met the trial judge and the husband
drinking together in places called “MARS” and “T COMPLEX” ; that a cousin of the
wife saw the judge and husband drinking in another place called “GALAXY” in
Limbe; that on many occasions the judge did not allow Applicant’s lawyer to
speak in Court.
Both Respondents did reply refuting all the above allegations, which they termed
as falsehoods of Applicant’s imagination .
In paragraph 39 of his counter affidavit, 2nd Respondent revealed that when the
substantive matter started before him, Barrister Eno Charles met him the judge
in Chambers and told him that 1st Respondent herein is a white man and that the
judge and the Lawyer should do everything possible to delay the hearing to
frustrate the white man or in the alternative the judge should enter judgement
in favour of Applicant herein on a promise that Applicant would compensate the
judge after gaining all the property of the marriage. This is an assertion of
bribery and corruption which was not proved with concrete evidence nor has any
collusion been established between the judge and the party.
Coming back to the accusation levied against the judge, what the wife said she
heard or saw has no time and has not been confirmed by anyone, nor even by any
material piece of evidence. The object of the declarations of Applicant’s un –
named cousin is to establish the truth of what is contained in the supposed
statement. All that is hearsay evidence which we must declare inadmissible . If
Applicant had wanted the cousin to be heard she would have given her name. But
on the whole all the assertions made in Applicant’s application have not been
proved never even offered to proved them. We took the pains to read through the
records of the lower Court and found that Barrister Eno had every opportunity to
speak in Court and used that right on numerous occasions.
We do not therefore see this recusal procedure as succeeding because collusion
between the judge and a party as well as the danger of pending bias, have not
been proved . For these reasons the application fails and is dismissed
accordingly.
That notwithstanding, the atmosphere now between the litigant and the trial
judge is tense. Applicant’s lawyer and the judge seem to be at dagger drawn.
THEY ARE BOTH MAKING ACCUSATIONS AND COUNTER ACCUSATIONS. THE SEAL OF CONFIDENCE
BETWEEN THE LITIGANT AND THE JUDGE SEEMS BROKEN. OUR FEAR NOW IS THAT UNDER
THESE GIVEN CIRCUMSTANCES THERE MAY NOT BE A FAIR TRIAL. A TRANSFER OF THE CASE
IS THUS NECESSARY. They are both making accusations and counter accusations. The
seal of confidence between the litigant and the judge seems broken. Our fear now
is that under these give circumstances there may not be a fair trial. A transfer
of the case is thus necessary. We also hold that the proper conduct for any
judge to adopt in the event of personal embarrassment in stage of the case. We
therefore order the transfer of Suit NO. HCF/23/MC/2000/2001 between GLENN
WILLIAM WILSON and BRILLIAN AYUK WILSON née Enow , now pending before Justice
MOKWE EDWARD MISIME of the Fako High Court to Justice Mrs. LEBONG MORFAW espouse
CHIBILI of same Court.
2. We also order that there shall be accelerated hearing of this long delayed
case.
3. There shall be no order as to costs .
WHERFORE, the President of the Republic of Cameroon commands and enjoins all
Bailiffs and process servers to enforce this JUDGMENT, the Procureur General and
the State Counsel to lend them support and all commanders and Officers of the
Armed Forces and Police forces to lend them assistance when so required by the
law;
IN WITNESS whereof the present JUDGMENT has been signed by a Panel of Judges and
the Chief Registrar of the Court.
DELIVERED AT BUEA THIS 27TH DAY OF MAY, 2002.
H.M. NAJEME (MRS)
CHIEF JUSTICE
J. F. FONKWE
VICE PRESIDENT
A. K. NANA
VICE PRESIDENT
CHIEF REGISTRAR
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